Encroachment on public land cannot be retained citing right to shelter: Gujarat High Court

While dismissing a PIL that was seeking to restrain the Railway authority from evicting slum dwellers until rehabilitation, the Gujarat High Court in an extremely commendable, courageous, cogent, composed and convincing judgment titled Bandhkaam Mazdoor Sanghathan vs State of Gujarat in R/Writ Petition (PIL) No. 59 of 2021 delivered on February 1, 2022 has minced just no words in holding that the right to shelter is not a ground to continue encroachment on a public land. Those who encroach on public land must pay heed to what the Gujarat High Court has held in this leading case. This will be in their own best interest if they do so.

To start with, this learned, laudable, landmark and latest judgment authored by Justice Ashutosh J Shastri for a Bench of Gujarat High Court comprising of himself and Chief Justice Aravind Kumar lays bare in para 2 that, “Petitioner claims to be a Trade Union registered under the provisions of Indian Trade Unions Act, works for the protection of human rights, legal rights and socio-economic welfare of the workers engaged in the construction industry, brick manufacturing process etc. It has been asserted that by way of this petition, the petitioner – Union is espousing the cause of slum dwellers in question, who are mostly poor workers and are residing at J.P. Ni Chali slum for about three decades. The place at which the workers are stated to have been residing is at Jayantilal Pranlal ni Chali (for short J.P. Ni Chali) at Sabarmati area, near Railway Bridge in Ahmedabad. It has been asserted that this petition is filed for rehabilitation of more than 318 poor landless, shelter-less slum dwellers in the aforementioned Chali, popularly known as J.P. Ni Chali at Sabarmati who are not being provided any alternative accommodation as per various State Government Policies.

2.1. It has been further stated in the petition that in the year 1991, Slums/Chali of J.P. Ni Chali set up at Sabarmati area near Ahmedabad came in existence by intra-State migrants from different districts of State of Gujarat. Upto year 2021, said Chali is comprising of 68-70 houses having population of more than 350 slum dwellers who are mainly daily rated employees or earning on daily basis. Since these slum dwellers are in possession they are entitled to have the benefit of the policy floated by the State of Gujarat known as ‘Rehabilitation and Re-development of the Slums 2010’ and detailed policy has been formulated in the name of ‘Gujarat Slum Rehabilitation Policy 2013. One Mukhya Mantri GRUH (Gujarat Rural Urban Housing ) Yojna as well as Mukhya Mantri GRUH Regulations’ for aforesaid rehabilitation Policy of 2010 has been formulated and Gujarat Slum Rehabilitation Policy – PPP – 2013 shall apply to the Slums on lands or plots or part of the lands or plots irrespective of the ownership.

2.2. According to the petitioner, a Resolution also came to be passed by the respondent – State Government on 18.07.2013 and the list of beneficiaries was to be prepared by the implementing agency on the basis of any two of the four identity proofs namely, electricity bill, voter identity card, slum survey card or ration card. According to the petitioner, no such list was prepared by the respondent authorities for rehabilitating these persons who are residents of J.P. Ni Chali.

2.3. The petitioner has asserted that on 15.03.2021, demolition took place in J.P. Ni Chali at Sabarmati near Railway Bridge in Ahmedabad. For 30 years or more, some 318 persons of different classes have been living in the huts with their respective families. It is further the case of the petitioner itself that first illegal demolition took place in the year 2018 for the purpose of setting up Ahmedabad-Mumbai Bullet Train and slum dwellers were removed from the area and those who were inside the railway wall/coat towards where the bullet train work was to begin. These slum dwellers/Jhuggis were removed and the wall was built up by the authorities. It is further the case of the petitioner that the residents of J.P. Ni Chali informed the petitioner Union that an agency of National High Speed Rail Corporation Limited i.e. respondent no. 4 herein, then surveyed the slum dwellers and Jhuggis and took necessary documents from the workers. Some photographs were also taken and it was conveyed that the houses would be allotted to them under the Pradhan Mantri Avas Yojna, but no action was finalized and the process rests as it is.

2.4. It is further the case of the petitioner that on 19.03.2021, after two years of waiting period to be rehabilitated, the railway employees verbally instructed the slum dwellers to vacate the huts without giving any proper notice and the slum dwellers in a fearful state of mind apprehended that they would be rendered homeless after verbal notice, wrote a letter to the Ahmedabad office of respondent no. 4 – General Manager on 22.02.2021 informing that when the survey was conducted as stated above, the surveyors at that time stated that rehabilitation measures would be taken under the RFCTLARR Act, 2013, instead, these slum dwellers were asked to vacate their houses verbally by the railway authorities and according to the petitioner when an inquiry was made from National High Speed Rail Corporation Limited, they have denied that they have not undertaken any survey. On 22.02.2021, a common notice was issued by the railway administration informing that if the huts are not removed and railway land is not vacated, latest by 28.02.2021, these occupants/slum dwellers would be removed with the help of JCB machine by the railway administration on 01.03.2021 and in a short time, it was not possible for these slum dwellers to find any shelter and further in the recent past on account of pandemic corona situation, the workers could not find any adequate work nor any shelter, as they could not be move from where they are and as such, petitioner submitted representations before the Ahmedabad Municipal Corporation seeking rehabilitation who informed that the railway authorities have issued written notice to vacate the huts after a lapse of seven days, but no accommodation was given. By taking support of the decision delivered by the Hon’ble Apex Court as mentioned in para 4.13, that homeless families should be considered for a separate policy or separate category in Pradhan Mantri Awas Yojna Scheme (hereinafter referred to as the PMAY Scheme). On 24.02.2021 a further representation in writing was submitted to the Divisional, Railway Management as well as General Manager of National High Rail Speed Corporation Limited. A further communication in turn was forwarded by the Railway administration on 12.03.2021 indicating them that by 14.03.2021 if the huts are not being vacated, same would be removed with the help of JCB Machine by the railway administration. The grievance of the petitioner is that none of the representations submitted by them to the authorities were responded to by the authorities and on 15.03.2021 at 9:30 a.m., all Slums/huts were removed with the help of JCB machine by railway administration and on 17.02.2021, the railway administration according to the petitioner have started digging pits and have commenced construction work and in such a situation for the present, the workers left with no open space between the wires and the wall even after demolition on 15.03.2021 a further representation was submitted on 16.03.2021 to the District Collector, Ahmedabad in person demanding that their homeless families may be given immediate shelter and it was further highlighted that after demolition, the slum dwellers of J.P. Ni Chali are without any temporary or even permanent shelter, food, water and basic human needs and since none of the representations were responded to by any of the authorities, left with no other alternate, the present petition is brought before the Court under the banner of Public Interest Litigation which is numbered as WP(PIL) No. 59 of 2021.”

As we see, the Bench then observes in para 3 that, “From the record it appears that on 07.06.2021, the Court after hearing, called upon the respondents and then various orders have been passed and lastly upon pleadings having been completed, since a request was made by the learned advocates appearing for the respective parties to take up the matter for Final Hearing, in view of the aforesaid circumstances, we have heard the learned advocates appearing for the respective parties at length on 07.12.2021.”

Most significantly, the Bench then briefly states in para 13 that, “Apart from that, we have also perused the decision of the coordinate Bench recently delivered on 20.02.2021 in the case of group of Letters Patent Appeal headed by Letters Patent Appeal No. 661 of 2021, wherein, in terms, on the basis of several decisions delivered by the Hon’ble Apex Court including the High courts, it is held that no person has got right to encroach and erect structures on any public places and mere continuous possession and possessing of documents like voter card, ration card, electricity bill etc., is sufficient to contend that they would not be liable to be evicted since right to shelter is a constitutional right. On the contrary, the encroachers in the case on hand have attempted to retain the land by repeatedly encroaching. As a result of this, no case is made out. Coordinate Bench of this Court in somewhat similar circumstances has held :

“25. Deciding a litigation of the present nature is quite painful. The weaker sections of the society like the writ applicants in the present case, no doubt, have the basic human and constitutional right to shelter and it becomes the paramount duty of the State to fulfill those. However, it gives no person the right to encroach and erect structures or otherwise on footpaths, pavements or public space or at any place reserved or earmarked for a public utility. This is exactly what seems to have happened in the case on hand. It may be true that the writ applicants were residing at the place in question past couple of years, but, still, as a Court of Law, we should not be oblivious of the fact that it was nothing, but encroachment over the government land over a period of time. We are not impressed with the submission canvassed on behalf of the writ applicants that the writ applicants cannot be said to be encroachers as they have a right to shelter being both a fundamental as well as a human right. The debate as regards the rights of encroachers over public land vis a vis the right to shelter should come to an end. This debate should not go on for a indefinite period of time. Mere long possession, over public land by way of encroachment by itself, is not sufficient to say that the encroachers are not liable to be evicted as they have a right to shelter. The right to shelter and encroachment are two different facet. An encroacher may save himself from being forcibly evicted only if during his period of stay over the encroached public land any enforceable legal right has crystallized in his favour. Otherwise, merely by asserting the Right to Shelter , an encroacher, over public land, cannot say that he cannot be evicted. There is no way that an encroacher can enforce the Right to Shelter for the purpose of protecting his unlawful possession. The right to shelter, which the writ applicants are talking about, is an obligation of the State. It is the State which has to discharge its obligation in this regard. The documents like voter card, ration card, electricity bill, etc. do not confer upon encroachers any vested legal right in their favour to hold the possession. Such document, at the most, may evidence of only one thing and that is possession. We may reiterate that the right to shelter does not mean right to retain the government land encroached upon. The right to shelter may be a fundamental right under the Constitution, but, certainly, no person has any right to retain the land encroached upon under the purported right to shelter. It is to be enforced under the provisions of the Constitution.

26. It is also necessary to refer to paragraph 9 of the Apex Court s judgment in the case of Ahmedabad Municipal Corporation vs. Nawabkhan Gulabkhan and others [AIR 1977 SC 152], which reads as under: The Constitution does not put an absolute embargo on the deprivation of life or personal liberty but such a deprivation must be according to the procedure, in the given circumstances, fair and reasonable. … …. … No inflexible rule of hearing and due application of mind can be insisted upon in every or all cases. Each case depends upon its own backdrop. The removal of encroachment needs urgent action. .. Sooner the encroachment is removed when sighted, better would be the facilities or convenience for passing or re passing of the pedestrians on the pavements or foot paths facilitating free flow of regulated traffic on the road or use of public places. On the contrary, the longer the delay, the greater will be the danger of permitting the encroachers claiming semblance of right to obstruct removal of the encroachment. If the encroachment is of a recent origin the need to follow the procedure of principle of natural justice could be obviated in that no one has a right to encroach upon the public property and claim the procedure of opportunity of hearing which would be a tardious and time consuming process leading to putting a premium for high handed and unauthorised acts of encroachment and unlawful squatting. On the other hand, if the Corporation allows settlement of encroachers for a long time for reasons best known to them, and reasons are not far to see, then necessarily a modicum of reasonable notice for removal, say two weeks or 10 days, and personal service on the encroachers or substituted service by fixing notice on the property is necessary. If the encroachment is not removed within the specified time, the competent authority would be at liberty to have it removed. That would meet the fairness of procedure and principle of giving opportunity to remove the encroachment voluntarily by the encroachers. On their resistance, necessarily appropriate and reasonable force can be used to have the encroachment removed. Thus considered, we hold that the action taken by the appellant Corporation is not violative of the principal of natural justice. Before expressing opinion in paragraph 9, the Apex Court pointed out in paragraph 7 as under: 7. It is for the Court to decide in exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a give case is by procedure which is reasonable, fair and just or it is otherwise. Footpath, street or pavement are public property which are intended to serve the convenience of general public. They are not laid for private use indeed, their use for a private purpose frustrates the very object for which they carved out from portions of public roads. ……. No one has a right to make use of a public property for the private purpose without the requisite authorisation from the competent authority. It would, therefore, be but the duty of the competent authority to remove encroachments on the pavement or footpath of the public street obstructing free flow of traffic or passing or re passing by the pedestrians. Thus, it is clear that no one has a right to make use of public property for private purposes.””

As a corollary, the Bench then stipulates in para 14 that, “A conjoint reading of the aforesaid circumstances unfolded in the said case and the facts involved in the instant matter, we would have considered the case of the persons represented by the petitioner to ascertain R & R policy would be extended to them or any other policy of the State Government can be extended. Having found from the assertion of the State authorities in its reply affidavit dated 13.09.2021 vide paragraph 4.4 that pursuant to the final declaration vide notification dated 12.10.2020 the land sought to be acquired in Village Acher was reduced from 351 sq.mtrs., only to 22 sq.mtrs., and such persons being represented by the petitioner not residing in such land, we cannot compel the State authorities to apply the scheme. We are of the view that petition is meritless and in the peculiar background of facts, the decisions which are sought to be relied upon by petitioners would not come for their rescue as they are quite distinct and same cannot be applied as a straight-jacket formula to the facts on hand.”

For clarity’s sake, the Bench then clarified in para 15 that, “However, while parting with the present order, we may make it clear that it would be open for the petitioner to avail any other remedy to ventilate their grievance by making specific representations, in which case the State authorities with sympathetic approach consider their claim and find out if it fits in any other policy, and if the answer is in the affirmative, the authorities would be at liberty to pass such orders as they deem fit. We make it clear that we have not expressed any opinion on merits and present petition is being dismissed as devoid of merits.”

Finally, the Bench then holds in para 15 that, “Accordingly, the present petition stands dismissed. Notice stands discharged with no order as to costs.”

In sum, the Gujarat High Court has made it crystal clear that encroachment over public land can’t be retained somehow or anyhow by citing the pretext of right to shelter. Of course, those who indulge in such encroachments must mend their ways now. It goes without saying that they must realize that they can’t hide now behind the pretext of right to shelter any more as has been made absolutely clear by the Gujarat High Court in this leading case also! It merits no reiteration that the earlier they do, the better it shall be in their own long term interests also!